Phil Querin Q&A: Sub Leasing and Eviction

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January 22, 2015
Phil Querin
Querin Law

Question: An occupant lives in a home that is sub leased from her father. The father, who is the official tenant on the lease, does not live in the home.  The occupant has been in the house since the beginning of January.  The occupant was asked at the time to complete and submit a criminal background check, but refused. So the occupant is living there as an unauthorized person. The father has given the occupant (his daughter) an eviction notice.  They went to court, and the judge told them to come back in two weeks. This morning the occupant gave the community owner a money order for February rent.  What should the community owner do with the money order. Should it be returned?  Should the community owner issue a 24 hour notice since the occupant is there without another person in the home having signed a rental agreement?  Or should the community owner give a no cause eviction?

Answer:  This fact patter should be a cautionary tale for all park owners and managers about the risk of letting too much time elapse between the violation and legal action.  In order to fully answer the question, I need to assume certain facts.  First, I assume that the rules clearly do not permit one to occupy a home without management approval.  Secondly, I assume that some form of permitted subleasing is OK, so long as the subtenant is approved by management.  Third, I assume that someone – presumably the father – has been paying the rent. 

If rent has been accepted with knowledge of this violation, it would be deemed to have been waived after the second acceptance of rent – regardless of who paid it.  Clearly, if the rules prohibit this, as does the rental agreement and law, action should have been taken the moment she refused to cooperate. 

The best solution may be for the father to proceed with the eviction, since he is a “landlord” under the non-manufactured housing side of the Landlord-Tenant law.  Clearly, he can work it out with her and/or the court, better than management working with the recalcitrant occupant, who has already established her unwillingness to cooperate.  Besides, why should the park absorb this expense, when it is really between the father as a “landlord” and his daughter as the “tenant.”  (I don’t know why the judge sent them home, but suspect it was to try to resolve it as a family matter rather than a court matter.)

As for whether to accept the rent, it’s already pretty late to be worried about “waiver” since that has long since been confirmed to have occurred.  Nevertheless, I would NOT accept the rent until this matter is resolved. 

The problem with park management doing the eviction based upon an “unauthorized occupant,” violation, is that it’s too late to enforce, in my opinion.  However, your question about a “No-cause” eviction suggests that you believe this might be a viable alternative – i.e. the legal basis for eviction arises under the non-manufactured housing side of the statutes.  I don’t think so.  First, because the manufactured housing side of the law still applies vis a vis the father, and regardless, rent has been accepted, making the waiver argument a real possibility.